The Committee does not find here a failure to state reasons. Thus, a tribunal must take care that when it repeats the same reasoning in each of the cases it has also made clear that each case has been considered on its own merits. For Argentina, the annulment mechanism is an essential part of the ICSID regime without which States would have been unlikely to join the ICSID Convention. - 30 July 2010, Separate Opinion of Arbitrator Pedro Nikken (Decision on Liability), Award As for Argentina's allegations concerning the Tribunal's lack of reasoning in respect of its findings on Claimants' FET claim, Argentina's necessity defence and the Tribunal's valuation of damages, they do not really have anything to do with missing reasons. On September 21, 2016, the Secretary-General registered Argentina's Application. Based on such record, the unchallenged arbitrators found that the links between the Claimants and Professor Kaufmann-Kohler were both indirect and highly immaterial. In this case, the flaws of the underlying proceeding and Award could not have been addressed during the arbitration through the remedies of rectification, interpretation or supplementation. There can be no manifest excess of power here. As with any other provision of the ICSID Convention, they must be interpreted in accordance with their ordinary meaning, in good faith, with due regard to context, and in the light of the object and purpose of the Convention. ", Nor did the Tribunal fail to consider Argentina's evidence on necessity. The Committee sees neither party as capturing accurately the standard of review when annulment is requested under Article 52(1)(a). "Suez and ors v Argentina, Decision on Liability, ICSID Case No ARB/03/17, IIC 442 (2010), 30th July 2010, United Nations [UN]; World Bank; International Centre for Settlement of Investment Disputes [ICSID]" published on by Oxford University Press. The Tribunal made another annullable error where it failed to explain how jurisdictional issues, which are clearly different from substantive issues, may fall within the scope of "all matters" relating to the term "treatment" in Article IV. This undermined the integrity of the Tribunal and warrants annulment of the Award for improper constitution of the Tribunal and serious departure from fundamental rules of procedure. But here Argentina is begging the question. incomplete or inadequate reasons). This included damages to Suez for losses on guaranteed (sponsored) debt including contingency debt losses, equity, management fees, and loans to APSF; to AGBAR for losses on guaranteed debt including contingency debt losses, and equity; and to Interagua for losses on guaranteed debt including contingency debt losses, and equity. The Tribunal assessed the evidence submitted by the parties and found that the Province did not reduce APSF's investment commitments after the crisis; it actually increased them and refused to adjust tariffs. Indeed, Argentina had made precisely the same argument to the Tribunal. Accordingly, the Committee rejects Argentina's contention that the Tribunal manifestly exceeded its powers, contrary to Article 52(1)(b) of the Convention. As mentioned in the conclusions on the reproduction issue, for example, the Tribunal did refer to the flooding that took place in the Province of Santa Fe. The risk of termination was a factor taken into account in the discount rate applied to the twenty-three years of projected cash flows. The Tribunal's approach could only be justified in case of an expropriation, a finding that the Tribunal never made. On March 17 2006, in the case Aguas Provinciales de Santa Fe S.A. et al. In its Decision on Jurisdiction of May 16, 2006, the Tribunal rejected all the objections raised by Argentina, except for one, which had become moot because of the discontinuance of the proceedings in respect of the claimant against which it was addressed. The following term must not appear in document. Suez et al. In fact, the Eurodollar rate proposed by Dr. The Respondent's position is that since it is the responsibility of the committee to protect the integrity of the process in relation to the constitution of the tribunal in the case for which annulment is sought, it can review whether the tribunal was properly constituted. Argentina identifies four bases for the annulment of the Award of the Tribunal in relation to the valuation of damages. It is widely recognized that the power of annulment under Article 52 of the Convention does not extend to an appeal on facts or law. There is no "essential difference" between them. The Committee considers that whether management fees were to be recovered fell clearly within the power of the Tribunal to determine damages and thus there can be no manifest excess of power. This case summary was prepared in the course of research for S Ripinsky with K Williams, Damages in International Investment Law (BIICL, 2008) LG&E Energy Corp., LG&E Capital Corp., LG&E International Inc. v The Argentine Republic Year of the award: 2006-2007 Forum: ICSID Applicable investment treaty: Argentina-US BIT (1991) Arbitrators And in any event it is beyond the scope of annulment for a committee to reweigh the evidence considered by the tribunal. The Claimants denied that the Tribunal had manifestly exceeded its powers or failed to state reasons when dismissing Argentina's necessity defense. In order to be serious, the violation of the rule must have caused the tribunal to reach a result substantially different from what it would have decided had such a rule been observed. On May 8, 2017, Argentina submitted its Memorial on Annulment (", On August 7, 2017, the Claimants submitted their Counter-Memorial on Annulment (", On October 5, 2017, Argentina submitted its Reply on Annulment (, On December 4, 2017, the Claimants submitted their Rejoinder on Annulment (". Suez provides equipment and services for potable water supply. It claims that the Tribunal did not meet the standards set out by the. the reflexive use of the annulment mechanism"171 by Argentina. Third, there were examples of reproduction inapplicable to the Santa Fe concession that Argentina argued directly influenced the decision of the Tribunal on fair and equitable treatment, on the necessity defence and on valuation. 1 dated February 7, 2017, concerning procedural matters, Resolution ETOSS No. Suez, Sociedad General de Aguas de Barcelona S.A. and Interagua Servicios Integrales de Agua S.A. Treaty: Article 52(3) of the Convention provides that "[t]he Committee shall have the authority to annul the award" if a ground under Article 52(1) is found to have been met. The conclusion of the unchallenged members on disqualification that the allegations against Professor Kaufmann-Kohler did not compromise her independence and impartiality was a decision that the Tribunal as composed was an independent and impartial Tribunal. It is not for an, Although a tribunal is required to decide every question put before it, there is no duty to comment on every argument raised, or piece of evidence submitted, by the parties. If Nasser blocked the precious flow of the canal, he could cripple the British and French economy, as the crisis erupted in the mid of the 'Cold War'. The summary of the dispute describes in very general terms the conduct allegedly in breach of IIA obligations as argued by the claimant (non-exhaustive). Argentina's request is not frivolous or dilatory. The relevant question, however, is not whether the Tribunal was right or wrong, but whether the Tribunal's decision is supported by reasons and/or constituted a flagrant jurisdictional overreach. First, the Tribunal manifestly exceeded its powers and contradicted itself (thus failing to provide reasons) when it awarded damages for claims arising out of the termination of the Concession Contract. The Parties confirmed, among others, that the 2006 ICSID Arbitration Rules would apply to the annulment proceedings. Suez, Sociedad General de Aguas de Barcelona, S.A.and Vivendi Universal, S.A. v. Argentine Republic, ICSID Case No. In respect of the rate applied to the rectification of the decision on contingency debt, the Tribunal applied the rate that was stipulated in the Debt Restructuring Agreement of March 3, 2005. Deep took a consistent view on the characterization of management fees as compensation for services rendered, and not as an "expected return,". The Tribunal decided that it was so superseded. … Deep's "middle ground" approach including its decision not to apply interest to unpaid management fees, because this was what a reasonable regulator would have probably done in the circumstances. A tribunal's reasons may also be implicit as long as they are understandable. Having said this, the Committee notes the generally unsatisfactory nature of the process for dealing with challenges to arbitrators, which poses a particular burden on the unchallenged members who are required to determine whether the other member of the tribunal should be disqualified. Second, the Tribunal's reasoning for rejecting Argentina's necessity defense is also stated in the Award. Even if that were the case, which it is not, this Committee is not tasked with determining whether Argentina's challenge was correctly decided. Secondly, she had a personal economic interest in the performance of UBS, since she received a significant percentage of her remuneration in UBS shares. It did, however, conclude that Argentina denied the Claimants fair and equitable treatment (". Upon Claimants' request, the Tribunal corrected two errors in its calculation of losses with respect to one of the items, the so-called contingency debt. It made a determination on the facts that the contribution by the Argentine government both through its policies and its failure to act when it might have done so to be sufficiently substantial within the meaning of the test so identified. The Tribunal rejected this rate because it was based on treating the amounts payable as an investment rather than as a debt and the Tribunal simply followed Dr. This is not an issue of selecting the right valuation date, as the Claimants contend, but one concerning the valuation period used by the Tribunal. Argentina requests that the "Claimants bear all of [the] attorneys' fees and any costs arising from this proceeding. Additionally, the Tribunal manifestly exceeded its powers and seriously departed from fundamental rules of procedure where it considered the sponsored debt to be a protected investment for the first time in the Award. To find an excess of power for failure to apply the applicable law, there must have been a failure to apply the law. Furthermore the Tribunal said that the risk of termination had been factored into the discount rate. ICSID committee declines to annul Suez v. Argentina (Case 03/17) award, but frowns on ICSID’s arbitrator challenge process and copy-paste approach used by arbitrators across several awards, Argentina liable for denying fair and equitable treatment to Suez-led consortia of foreign investors in Buenos Aires and Santa Fe water concessions, New challenge to arbitrator Gabrielle Kaufmann-Kohler fails in Argentine (Suez & Vivendi) water arbitrations. Definitive settlement of the dispute between SUEZ and Argentina on Aguas Argentinas. Claimants argue that the circumstances in these proceedings justify Argentina bearing the Claimants' costs because: Claimants further observe that "the practice of dividing arbitration costs and legal fees evenly has increasingly fallen out of favor". In the case of arbitration proceedings the Tribunal shall, except as the parties otherwise agree, assess the expenses incurred by the parties in connection with the proceedings, and shall decide how and by whom those expenses, the fees and expenses of the members of the Tribunal and the charges for the use of the facilities of the Centre shall be paid. However, as the Claimants point out in Appendix II to their Rejoinder, overall their position on interest was for an amount higher than that of Argentina and than that ultimately adopted by the Tribunal. Both terms must be less than X words apart. An error of law, even a serious error of law, is not an excess of powers under Article 52(1)(b) let alone a manifest one. She was a member of the Board of Directors of UBS, a company holding shares and other interests in Suez, during the arbitration proceedings. Public Participation and Transparency in International Investment Arbitration: Suez v Argentina New Zealand Yearbook of International Law, The Volume 4 (2007) Kawharu, Amokura 1. In the present case, the Tribunal discussed the arguments of Argentina and reviewed relevant case law. As the, Argentina's second annulment ground should also be dismissed. The Committee observes that the question of whether an MFN provision in an investment agreement can be invoked in order to obtain the benefits of dispute settlement provisions in another investment agreement, and specifically an 18-month local litigation requirement, has arisen in a good many cases and inspired a substantial scholarly literature. Each Party shall bear half of ICSID's administrative fees and expenses incurred in connection with this proceeding, including the fees and expenses of the Members of the Committee. Its application on this point is based on the Tribunal's failure to apply the law. In addition, the Tribunal stated reasons for not limiting the period to the date on which termination had taken place. Further, the existence of a Decision on Disqualification by the original tribunal has to be something more than "an element of judgment" for an annulment committee to consider. The Tribunal did state the legal standards it purported to apply and provided reasons for its interpretation. Jus Mundi's algorithms and legal experts scan the web and the national litigation around the world in order to identify those awards that have been made public, in most cases through a municipal annulment or enforcement procedure. For the Committee to go behind this would be to engage in an analysis of the substantive issues in the case, something beyond the mandate of an. In accordance with the agreed schedule and further revisions, the Parties made three simultaneous rounds of submissions on the stay of enforcement. These standards, however, are not confined to the rules of procedure provided for in the arbitration rules, but they also embrace principles of natural justice such as due process, the right to be heard, proper treatment of evidence, among others. But that is not a ground on which there can be annulment. The Tribunal thus treated the termination as if it had violated applicable BITs. Article 58 has assigned that task to the unchallenged members of the tribunal and when those members have exercised that function an annulment committee is faced with findings of fact, an assessment of those facts and an application of law to those facts. In the Committee's view, these are matters that might be taken into account in the future when challenges are made to arbitrators on the basis of a conflict of interest. It considered that the existence of a dispute settlement clause in the concession contract concluded by Aguas Provinciales de Santa Fe S.A. ("APSA"), an Argentinian corporation in which the Claimants had shares and other interests, and the Province of Santa Fe for the operation of the water services in that Province did not preclude the Claimants from bringing this arbitration based on breaches of the Argentina-France and the Argentina-Spain BITs. While it is true that the, Argentina's argument that the Tribunal disregarded a substantial body of documentary, expert and witness evidence is also difficult to sustain. Not only did she fail to investigate and disclose this fact to the parties but also she refused to resign. Nor did they believe that Professor Kaufmann-Kohler's nondisclosure of her UBS directorship demonstrated lack of independence or impartiality. Argentine Republic (“Argentina” or “the Respondent”) had breached its obligations under three bilateral investment treaties by denying the Claimants’ investments fair and equitable treatment as required by the applicable treaties. ARB/03/17) Argentina - France BIT (1991) Argentina - Spain BIT (1991) ICSID : ICSID Neither Article 48(3) nor Article 52(1)(e) specifies the manner in which tribunals must state their reasons. 03/18, Suez et al v. Argentina, ICSID Case No. Nonetheless, the Committee does not consider that the request for annulment in this case can be regarded as an abusive request for annulment as the Claimants assert. As the. Deep relied on a proposal to modify the Concession Contract, known as. It need not prove that the tribunal would have effectively reached a different decision. ", The Claimants argue that the purpose of Article 52(1)(e) is to ensure that ICSID awards are the result of reasoned decision-making. v. Argentina was an ICSID Convention proceeding. There is no serious allegation of a failure to apply the applicable law or any evidence that the Tribunal in fact failed to apply the applicable law. In short, what Argentina is attacking is the substance of the issue. The Claimants shall thus pay half of the costs of the annulment proceeding, including the fees and expenses of the Members of the Committee and the costs of the Centre. It had called for a 60% price rise to pay for infrastructure improvements, but the government offered just 16%. With the support of an expert opinion prepared by ethics Professor Charles W. Wolfram, Argentina conclusively established that Prof. Kaufmann-Kohler had at least two distinct interests, which were incompatible with her duty to the parties to exercise independent and impartial judgment. It does not agree with the Tribunal on the merits of its decision. With regard to the second and third categories of reproductions, the question is whether they indicate a failure by the Tribunal to consider properly the arguments of Argentina and that this would amount to a manifest excess of power, a violation of a fundamental rule of procedure or a failure to state reasons. This prevented the parties from having the chance to discuss this issue during the arbitration. Argentina does not deny that Section IX of the Award and the reasons stated therein exist; it protests instead that those reasons are insufficient. Further, Argentina claims, the Tribunal ignored large volumes of documentary, expert and witness evidence submitted to it by Argentina. Each Party shall bear its own legal costs and expenses incurred in connection with this annulment proceeding. First of all, the Tribunal's factual determinations and legal conclusions are not open to challenge and, even if they were, they are correct. Accordingly, the Committee does not find the Tribunal's treatment of sponsored debt as an annullable error. For the SUEZ Group alone, the … 3/19 and AWG v. Argentina, an UNCITRAL (1976) proceeding (Suez 3/18, Suez 3/19 … Thus, the request before this Committee is not whether in the abstract the Tribunal was properly constituted but whether the decision to reject the request for disqualification and accordingly that the Tribunal was properly constituted meets the appropriate standard of review. Therefore, Argentina's Application under Article 52(1)(b) must likewise fail. The Committee's role under either Article 52(1)(a) (i.e. Such decision shall form part of the award. The 18-month local litigation requirement stands only if it is not superseded by application of the MFN clause. Thus there is no foundation to the claim that there had been a manifest excess of power by the Tribunal. In respect of the "non-contribution" condition, the Tribunal identified the relevant legal requirement that the contribution be sufficiently substantial to prevent the defence of necessity from being relied on. It also argued that the Tribunal rectified the decision on contingency debt with an interest rate higher than that suggested by the parties. However, the Committee does not consider that this goes far enough to constitute a manifest excess of powers, violation of a fundamental rule of procedure or a failure to state reasons. Deep, and adopted by the Tribunal was lower than the one proposed by the Claimants. Instead, it based its damages calculation on Argentina's treaty breaches that preceded the termination. Suez, which owns 40% of Aguas, announced last year it wanted to pull out of Argentina for financial reasons. The drafting history of Article 52 confirms that the Convention's framers did not intend for an annulment application under Article 52(1)(a) (or under any ground) to trigger. The Tribunal identified the four conditions that must be met to sustain a defence of necessity, on the basis of ILC Article 25(1), and then analyzed each in turn. Abraham USD 87,141.65, ICSID's administrative fees USD 116,000.00. The costs of the proceeding, including the fees and expenses of the Committee, ICSID's administrative fees and direct expenses, amount to: The Committee notes that the Claimants were successful in opposing the annulment in this case and that success by a party should have an impact on costs. These other cases are Suez et al v. Argentina, ICSID Case No. This agreement was set out in the Claimants' and Argentina's letters of December 22 and 23, 2016, respectively. The Tribunal did not "overlook" Argentina's arguments; it rejected them. This claim is clearly time-barred under ICSID Arbitration Rules 9(1) and 27. For the Claimants, annulment on any Article 52(1) ground requires a committee to conclude that an annullable error had a material impact on the outcome of a case, Article 52(1)(b) being no exception. tribunal's improper constitution) or (d) (i.e. - 22 Oct 2007, Decision on a Second Proposal for the Disqualification of Gabrielle Kaufmann-Kohler THE PARTIES ARGUMENTS FOR AND AGAINST ANNULMENT, A. REPRODUCTION BY THE TRIBUNAL OF THE FINDINGS MADE IN OTHER ARBITRATIONS, B. Deep's recommendation of the compounded six-monthly Eurodollar rate. Argentina Under Bilateral Investment Treaties: Background and Principal Legal Issues Paolo Di Rosa* I. INTRODUCTION/SUMMARY One of the consequences on an international level of the mea-sures adopted by the Government of Argentina in connection with the … However, the Tribunal took the view that it was not providing damages as if there had been a termination of the Concession Contract. Already registered ? The original PDFs of the commercial arbitration awards are the only documents that are not available by default on jusmundi.com. It must be obvious, self-evident, clear, flagrant and discernable without great effort or extensive analysis to satisfy this standard. Nor is it possible to file a request for reconsideration against any such decision, as the, The Claimants argue that the Tribunal did not exceed its powers when making common findings in this and the. Argentina argues in addition that the treatment of interest by the Tribunal in actualizing damages constituted a manifest excess of power by the Tribunal and a failure to state reasons in that the Tribunal used an interest rate that was higher than that agreed between the parties. This will keep you logged in for 2 weeks. When you browse our site, data may be saved or read from your browser or device. Tan Sri Dato' Cecil W.M. This is not a case like. The Tribunal explained that access to dispute settlement, a "matter" governed by Article X of the Spanish treaty, is a right or privilege covered by the notion of "treatment" that authorizes application of the MFN clause pursuant to the ordinary meaning of the term treatment. Although the Claimants argued in the original proceedings that the termination was in violation of Argentina's BITs, the Tribunal disagreed and dismissed this claim. Argentina learned about Prof. Kaufmann-Kohler's engagement in UBS in November 2007 and filed a proposal for disqualification as soon as she confirmed that UBS had indeed shareholdings in Suez of which she was unaware. Nor did it submit the evidence on the record upon which it now seeks to rely. ", Claimants request that "Argentina bear all costs and expenses incurred by the Claimants in connection with the present annulment proceedings, including the fees of the Centre, the costs and fees of the. The Tribunal acted within its powers and provided copious reasons when calculating damages. Prior IAReporter Coverage of Suez v. Argentina (1) ICSID committee declines to annul Suez v. Argentina (Case 03/17) award, but frowns on ICSID’s arbitrator challenge process and copy-paste approach used by arbitrators across several awards Dec 17, 2018. In their Decision on Disqualification the unchallenged members of the Tribunal carefully reviewed the request made, the facts and arguments on which it was based, the law applicable to disqualification and how that applied to the request in respect of Professor Kaufmann-Kohler. Indeed, decision-makers in other cases have reached precisely the same decision on essentially the same grounds in respect of attempts to disqualify Professor Kaufmann-Kohler as was reached in the present case. Exclude grammatical variations of your search terms. That provision does not permit an annulment committee to consider the question whether a tribunal has been properly constituted as if it were deciding the matter for the first time. Argentina contends that Article 52(1)(d) means that a set of minimal standards of procedure must be observed in ICSID proceedings, which includes the right to an independent and impartial tribunal. Moreover, such fees were awarded to Claimants for services never provided, after the Contract was terminated in 2006. Years of projected cash flows have effectively reached a different decision result of this, Secretary-General... Factual findings a clear conflict of interest for which she should have been disqualified hear this case challenge. Until the Application was decided not possible to draw from this proceeding text from the other awards appears fall. Santa Fe S.A. et al been owned by the Tribunal rejected the proposal for disqualification its applications have been failure! 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